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Supreme Court rejects Harper government proposals for Senate reform

Ottawa cannot act alone to reform the Senate, limit terms or appoint only elected senators, and must have the consent of seven provinces with half the country’s population, the Supreme Court of Canada ruled Friday.

Prime Minister Stephen Harper has been an advocate of Senate reform since his days as a young Reform party MP. (EVERT-JAN DANIELS / AFP/GETTY IMAGES file photo)

The Supreme Court's ruled Friday that the Senate can only be abolished with unanimous consent of the federal Parliament and all provinces. Pictured here is the Senate chamber Friday. (Adrian Wyld / THE CANADIAN PRESS)

OTTAWA —Prime Minister Stephen Harper shut the door Friday on a career pledge to reform the Senate after the Supreme Court of Canada ruled he needs substantial provincial consent to introduce elections or term limits to the upper chamber and unanimous consent to do away with it altogether.

In response, the Conservative government said it is dropping Senate reform and ruled out a referendum to build public support to bring reluctant premiers onside as one of its own cabinet ministers, Maxime Bernier, and NDP Leader Tom Mulcair — who both advocate abolition — publicly urged Friday.

The prime minister said he was “personally disappointed” in a ruling he says left the country “essentially stuck” with an scandal-plagued unelected Senate supported by “virtually no Canadian.”

The prime minister said no change will come to the 147-year-old Senate anytime soon because the court declared, according to Harper, “these are only decisions the provinces can take.”

“We know that there is no consensus among the provinces on reform, no consensus on abolition, and no desire of anyone to reopen the Constitution and have a bunch of constitutional negotiations,” Harper said. He said the court had effectively determined “that significant reform and abolition are off the table.”

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“I think it’s a decision that the vast majority of Canadians will be very disappointed with, but obviously we will respect that decision.” His democratic reform minister Pierre Poilievre said the government will now focus on cutting costs and “maximizing accountability” at the Senate.

Polls

Legal experts, several provincial premiers, and opposition critics disputed Harper’s characterization of the ruling, saying the high court did not block Senate reform, but provided a road map for constitutional change — if Harper wanted to go down that route. But it will require constitutional negotiations and major change needs the approval of seven provinces having half the country’s population.

Quebec’s new Liberal government hailed the unanimous 8-0 ruling as “historic,” and justice minister Stéphanie Vallée said it shows “it’s not up to the federal government to dictate reform.”

In a clear sign of the strong judicial consensus, the 52-page ruling was signed by “The Court” as a whole, not penned by any one judge.

Liberal MP Stéphane Dion said meaningful change could be made without angering Canadians with a new round of constitutional talks. He urged practical changes to the selection process for senators, such as an eminent persons vetting panel as proposed by Justin Trudeau. Yet the court’s ruling was clear that substantive change to “the method of selecting senators” would require substantial provincial agreement.

In a clear, succinct 52-page decision, the top court unanimously concluded the federal government cannot act alone to introduce so-called non-binding elections for senators or to limit terms to nine years as the Conservatives proposed.

Such reforms to “foundational political institutions” require the consent of seven provinces with half the country’s population as set out in the 1982 Constitution’s “general amending formula,” the judges said.

More radical reform like abolition can be done only with the unanimous consent of Parliament — which includes the Senate itself — and all provinces, a prospect that Harper says renders it impossible.

Premiers in Ontario, Quebec, P.E.I., and Manitoba said Senate reform is not their priority, but if Harper wanted to negotiate they would be at the table. Manitoba’s NDP government joined Saskatchewan in calling for abolition. But Saskatchewan Premier Brad Wall — who also supports abolition — was as defeated as Harper.

Polls

Wall said the ruling is a “pronouncement that every province has de-facto veto over meaningful change or abolition,” and any referendum exercise would be “a probable waste of time and taxpayers money. Short of successive prime ministers refusing to appoint Senators until the chamber is empty it would appear that Canada is indeed stuck with an anachronistic, unelected, unaccountable Senate.”

Harper’s spokesman, Jason Macdonald, told the Star the government has now completely ruled out a referendum. “A referendum would be expensive, inconclusive and would change nothing, ultimately,” he said.

The high court said a chamber of senators appointed at the pleasure of a prime minister who hold their seats until mandatory retirement at age 75 was part of the original bargain at Confederation. It was intended to represent regional interests and to act as a legislative check on the executive. Its design as an unelected body was “not an accident of history,” the judges said.

Senators don’t have the expectations and legitimacy that stem from popular election, and so the court said the Senate can act as it was intended to be: “a complementary legislative body rather than a perennial rival of the House of Commons.”

The judges said term limits, even lengthy ones, provide “a weaker security of tenure” and “offer a lesser degree of protection from the potential consequences of freely speaking one’s mind.” The court said it is “at heart a matter of policy” for politicians to determine, but is nevertheless a question that “engages the interests of the provinces (and) it requires their input.”

It was the fifth judicial defeat at the high court for the Conservative government’s agenda in the past few months.

Ontario Premier Kathleen Wynne said “Ontario is ready to participate if the federal government decides to lead collaborative pan-Canadian discussions about Senate reform.”

The court allowed only one argument made by the federal government: that Ottawa could unilaterally remove the requirement that senators hold $4,000 worth of property in the province of their appointment, but the Supreme Court said even repealing that requirement would, in the case of Quebec senators, require Quebec provincial assent because that province had a special arrangement for Senate representation at Confederation.

Harper, an advocate of Senate reform since his days as a young Reform party MP, had argued his plans didn’t amount to a constitutional change, saying he would still retain the power to reject an elected candidate for the Senate. That was roundly dismissed by the court, which said it may be possible “in theory” but in practice, a prime minister would be hard-pressed to ignore the results of “costly and hard-fought” elections.

Polls

The ruling is a blow to the New Democrats’ campaign to abolish the Senate in the wake of a . The NDP has tried to capitalize on public backlash to “roll up the red carpet.” But Mulcair told reporters Friday he will continue that campaign, and said if the Conservatives had been serious about reform they should have sought the court’s opinion “ages ago.”

However, Mulcair’s deputy on democratic reform issues, Craig Scott, conceded the ruling confirms the NDP’s demands to abolish the Senate will be “very difficult . . . and therefore serious reforms inside the Parliament to the Senate have to occur.”

Friday’s ruling echoed Quebec’s top court, the Quebec Court of Appeal, which ruled last year that Parliament couldn’t unilaterally impose term limits or consultative elections, and needed substantial provincial consent.

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